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[2019] ZAGPPHC 204
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Sanprosa (Pty) Limited v Petersen N.O and Others (45197/18) [2019] ZAGPPHC 204 (21 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No:
45197/18
21/5/2019
In the matter between:
SANPROSA
(PTY) LIMITED
Plaintiff/ Respondent
and
IZAK
SMOLLY PETERSEN N.O
1
st
Defendant / 1
st
Excipient
RIDWAAN
ASMAL N.O
2
nd
Defendant /2
nd
Excipient
BRIAN
HILTON AZIZOLLAHOFF N.O
3
rd
Defendant / 3
rd
Excipient
JUJDEESHIN
JUNKOON N.O
4
th
Defendant
I
4
th
Excipient
JUDGMENT
ON EXCEPTION
Introduction
[1]
The plaintiff
instituted action against the defendants in their capacity as
trustees of the Dipula Property Investment Trust. The
trust was a
registered owner of an immovable property that had a rental lease
agreement with Telkom for erection of antennae and
equipment. For the
sake of convenience I shall refer to the defendants as 'the Trust'.
[2]
This immovable property was sold and
transferred to the plaintiff on or about 27 March 4017.
[3]
The dispute between the parties arises
from rental money that Telkom was paying to the Trust, which became
payable to the plaintiff
on registration of the immovable property.
In the particulars of claim, the plaintiff alleged that Telkom
continued to pay rental
to the Trust, and that it was entitled to
this money for certain specified periods being;
[3.1] Its
pro rata share for the amount that Telkom paid as rental for the
period from 2,7 March 2014 to
31 October 2014 .
[3.2] The
rental amounts that Telkom paid to the Trust in error on various
dates from 1 November to 2014
to 1 November 2017.
[4]
The plaintiff contend, that the Trust
failed to disclose these payments and to repay it to the plaintiff
but retained the money
under circumstances where It was not entitled
to it as it was either d e or owing to the Trust but to it.
[5]
The Trust is alleged to have;
(a)
admitted liability ta the
plaintiff in writing for payment of the rental amounts that Telkom
paid to it for the period 1 November
2014 to 1 November 2017 and
undertook to repay it to the plaintiff,
(b)
denied receipt of rental for the
period of 1 November to 31 October 2014 and;
(c)
admitted liability In writing for
the payment of the pro rata annual rental for the period 27 March
2014 to 31 October 2014 that
was paid to it in error by Telkom. It
undertook to repay It to the plaintiff.
The
exception and submissions
[6]
After giving notice to the plaintiff in terms of Rule 3 to remove a
cause of complaint,
and the plaintiff having failed to do so. the
Trust excepted to the plaintiffs particulars of claim on four
grounds.
Ground 1
[7]
The plaintiff is alleged to have no cause of action against the Trust
because, so
the argument goes, it is Telkom and not the plaintiff
that has been enriched. Therefore, the plaintiff lacks locus standi
to institute
a claim against the Trust. Th plaintiff's claim is
against Telkom and the Trust may remain liable to Telkom for the
amounts by
which It was enriched.
The
alternative basis for the exception in this regard is that the
particulars of claim are vague and embarrassing as the Trust
is not
able to ascertain who was impoverished and whether Telkom's liability
to the plaintiff has been extinguished.
[8]
In their heads of argument, the
excipients contend that the plaintiff's claim is based on
an
exception, being either the
condictio indebiti
or
condictio sine causa
and
It has failed to meet the requirements for both.
[9]
With reference to authorities, the Trust
contend that the requirements that the plaintiff was $Opposed to meet
for a claim based
on
condictio
indebiti
are that the payment was
made In the reasonable bl)t mistaken belief that it was owing, that
there was no obligation to pay and
the error was reasonable.
[10]
Under these circumstances the Trust
argued, it is Telkom who can institute a claim since it made the
payment, not the plaintiff.
[11]
The requirements for
condictio
sine causa
are;
(a)
receipt of this money or goods to which
the plaintiff is entitled,
(b)
without a valid cause for such receipt ,
(c)
enrichment of the recipient at the
expense of the plaintiff, and ;
(d)
impoverishment of the plaintiff.
[12]
The Trust contends that Telkom became
the plaintiffs debtor by cession and It was aware of such when it
paid the rental amounts
to it. Telkom remains liable to the
plaintiff, and having paid the Trust in error, it has a claim against
the Trust based on
condictio
indebiti.
[13]
The plaintiff's answer to the
plaintiff's submissions is that it has pleaded its claim properly and
all the elements of
condictio
indebiti
have clearly been set out.
Ground 2
[14] The
Trust contends that its letters that were addressed to the plaintiff
cannot be interpreted as admission
of liability but merely as an
indication that the amounts were re lv d and that there must be an
accounting exercise. These letters
do riot set out a cause of action,
in the alternative, the particulars of claim in this regard are vague
and embarrassing because
the Trust is not able to ascertain whether
the plaintiff alleges that the letters constitute an acknowledgement
of liability, whether
it has accepted the adjustment of the account
and to what extent the Trust is liable to the plaintiff.
[15] The
plaintiff's submissions with regard to this ground of exception is
that it amounts to an attack
on the merits of the claim, which is not
what an exception should be about. The Trust must file a plea and
plead the defence that
the letters do not amount to an admission of
liability if that is what is being contended.
Ground 3
[16]
The particulars of claim with regard to
the claim for payment of
pro rata
rental amounts does not disclose a
cause of action because the plaintiff has failed to set out the terms
and conditions of the agreement
of sale and particularly the basis
for entitlement of amounts received by the Trust before the agreement
was concluded and prior
to transfer of the property. In the
alternative, it is alleged that the particulars of claim are vague
and embarrassing because
the Trust is unable to ascertain whether the
agreement deals with amounts received prior to the sale agreement,
the terms of the
agreement and how the purchase price was calculated
with reference to the future rental amounts.
[17]
The plaintiff's submission on this
ground of exception is that its claim is based on enrichment, and not
on the agreement of sale.
Ground 4
[18]
The plaintiff has not set out any cause
of action for the claim of interest at the rate of 10,25% per annum
as no agreement in this
regard is alleged, and furthermore, whether
the Trust was placed in mora on any of the dates on which the claim
for interest is
based. In the alternative, the particulars of claim
are vague ad embarrassing for the same reasons.
[18.1] The plaintiff submitted
that the interest rates do not render a claim excipiable and that it
was never under an obligation
to place the Trust in mora.
Legal
principles
on
exceptions
[19]
Rule 18(4) of the Uniform Rules of Court
provides as follows:
"Every pleading shall
contain
a
clear
and concise statement of the material facts upon which the pleader
relies for his claim, defence or answer to any pleading,
as
the case may be,
with sufficient particularity to enable the opposite party to reply
thereto."
[20]
Ambiguity on its own is not sufficient. There must be evidence that
the opposing party will be
seriously prejudiced if the relevant
portions in the declaration are allowed to stand. The vagueness must
relate to the cause of
action... As stated in
Jowell v
Bramwell- Jones and Others
1998 (1) SA 836
(W) at
905,
the question is whether the exception goes to the
heart of the claim, and if so, whether it is vague and embarrassing
to the extent
that the defendant does not know the claim he has to
meet, and should he find that an exception on any ground fails, to
then ascertain
in the second place whether the particulars identified
by the defendant are strictly necessary in order to plead and, if so,
whether
the material facts are unequivocally set out.
[21]
Rule 18(6) of the Uniform Rules of Court provides as follows:
"
A party who in his
pleading relies upon
a
contract shall state whether the
contract is written or oral and when, where and by whom it was
concluded, and If the contract Is
written
a
true copy thereof
or of the part re/led on in the pleading shall be annexed to the
pleading".
[22]
In the matter of
Trope
and Others v South African Reserve Bank
[1]
,
Macreath J
considered the
meaning of "vague and embarrassing" in the context of
exceptions and the nature of the enquiry that the
court should
undertake.
"No doubt, the absence of
the opportunity to clarify an ambiguity or cure an apparent
inconsistency, by way of further particulars,
may encourage greater
particularity in the initial pleading.
The ultimate test, however,
must in my view still be whether the pleading complies with the
general rule enunciated in Rule 18(4)
and the principles laid down in
our existing case law.
An exception to
a
pleading on the
ground that It
is
vague and
embarrassing involves a two fold consideration. The first is whether
the pleading lacks particularity to the extent that
it is vague. The
second
Is
whether the
vagueness causes embarrassment of such s nature that the Excipient
is
prejudiced
(Quinlan v MacGregor
1960
(4) SA 383
(D) at 393E-H.) As to whether there is prejudice, the ability of the
Excipient to produce an exception-proof plea is not the only,
nor
indeed the most important, test
-
see the remarks
of Conrad/a J in Levitan v Newhaven Holiday Enterprises CC
1991
(2) SA 297
(C) at 298G-H. If that were the only test, the object of pleadings to
enable parties to come to trial prepared to meet each other's
case
and not be taken by surprise may well be defeated.
Thus It may be possible
to plead to particulars of claim that can be read in any one of a
number of ways by simply denying the allegations
made; likewise to a
pleading which leaves one guessing as to its actual meaning. Yet
there can be no doubt that such
a
pleading is
excipiable as being vague and embarrassing -
see Parow Lands (Pty)
Ltd v Schneider
1952
(1) SA 150
(SWA) at 152F-G and the authorities there cited.
It
follows that averments in the pleading which are contradictory and
which are not pleaded in the alternative are patently vague
and
embarrassing; one can but be left guessing as to the actual meaning
(if any) conveyed by the pleading."
[23]
It is also important
to note that for purposes of adjudicating on an exception, the court
must look at the pleading excepted to
as it stands.
Minister
of Safety and Security v Hamilton 2001 (3) SA 50 (SCA)
[24]
It is now trite that non - joinder can
be raised by way of exception.
Ramatshimbila
v
Phaswana
(99 /13)
[2014] ZASCA 117
(19 September 2014
Discussion and conclusion
[25]
Applying the legal
principles on the facts of this matter, it became clear during oral
submissions that there was no merit in the
second, third and fourth
grounds of exception and that the only issue that had substance and
remained for adjudication was whether
the plaintiff had
locus
standi
to
institute a claim against the Trust under circumstances where the
money was paid by Telkom. This Is the first ground of exception.
[26]
In his heads of argument, counsel for
the plaintiff submitted that it has pleaded the claim based on
'
condictio sine cause'
and referred
to the relevant paragraphs in the particulars of claim.
[27]
Counsel before me referred to the Eight
Edition of LTC Harm's
'Amler's
Precedents of Pleadings'
to
substantiate their submissions with regard to the necessary averments
to sustain a cause of action for a claim based on
condictio
indebiti
or
condictio
sine causa.
[28]
The copy of this
book that is in my chambers is outdated. I am indebted to counsel for
making available the latest edition. I have
already referred to the
necessary averments in paragraph [11] of this judgment above.
[29]
Under the subheading
'Relationship
with condictio indebiti',
the
learned author stated as follows:
"Although the condictio
sine causa may be brought when the oondictio indebiti would be
inapplicable It Is said not to be an
alternative to the latter. The
condictio sine causa may be applied when, for example, an executor
pays to A
a
legacy belonging
to B. B Is entitled to recover from A irrespective of an excusable or
other error by the executor"
[30]
I enquired from the
both counsel whether this was still authority or whether there has
been any development in the law with regard
to this issue.
[31]
It was clear that both counsel had not
considered what LTC Harms had stated in the paragraph I have quoted
above, and as such they
were not prepared to address me on the issue.
[32]
I allowed the parties an opportunity to
look up the authorities and to revert to me. I adjourned the hearing
for this purpose, with
an understanding that I wo1,1ld give judgment
on receipt of their supplementary submissions.
[33]
Later that afternoon co1,1nsel for the
Trust, Mr. Aucamp sent an email to my Clerk and requested her to
advise me that he had a
look “
at
the issue under consideration, and it appears to
me
that the condictio sine causa IE;
indeed available to the plaintiff to pµrsue its action against
the Trust directly.”
He did not file any supplementary
submissions or refer to authorities.
[34]
I have not received any supplementary submissions from counsel for
the plaintiff either.
[35]
It is correct that the particulars of claim do cover the necessary
averments for the claim based
on
condictio sine causa,
however,
the complaint raised in the exception relates to the legal standing
of the plaintiff to institute the action in view of
the fact that the
payment was made by Telkom.
[36]
Objections of non-joinder and locus
standi are normally raised as a special plea, however, it is trite
that if the facts giving
rise to the objection appear in the summons,
s in the matter before me, the defendant Is entitled to except on the
basis that no
cause of action is disclosed. (Erasmus: Superior Court
Practice (second Edition, volume 2, Van Loggerenberg) at 01- 305 and
the
authorities cited therein, one of which Is
Gallo
Africa LTD and Others v Sting Music (Pty) LTD and Others.
[37]
My view on the issue is that the
remaining ground of exception question must be decided in the context
of the legal principles regarding
what constitutes a cause of action.
The enquiry is a factual one.
[38]
The words "cause of action"
were described as follows in
McKenzie
v Farmers' Co-operative Meat Industries Ltd
1922
AD 16
;
"every fact which It would
be necessary for the plaintiff to prove, ff traversed, in order to
support his right to the judgment
of the Court. It does not comprise
every piece of evidence which is necessary to prove each fact, but
every fact which is necessary
to be proved".
[39]
The cause of action must have been in
existence at the time of issue of the summons in
Philotex
(Pty) Ltd and Others v Snyman and Others
1994 (1) SA 710
TPD
at 715 D-G Van Dijkhorst J stated
amongst others the following the following in this regard:
“
The
general approach in this Division has for many decades been that
a
cause of action
should exist at the time of institution of action.”
[40]
The excipient in order to succeed, has a
duty to persuade the court that upon every interpretation that the
pleading is based, no
cause of action or defence whatsoever is
disclosed,
Theunissen v
Transvaalse Lewendehawe Koop Bpk 1988 (2) SA 493 (A))
[41]
In terms of Rule
20(2), a declaration is required to set forth the nature of the claim
and the conclusions of law which the plaintiff
shall be entitled to
deduce from the facts stated. A declaration is excipiable if it lacks
averments that are necessary to sustain
an action. This requirement
is equally applicable to particulars of claim.
[42]
The facts pertaining to the
circumstances under which the payment was made is what ultimately
gives rise to the cause of action
that would entitle anyone of them
to institute action against the other. The fact that I have already
rejected the other grounds
of exception makes it even more obvious
that there is no merit in the first ground of exception because the
cause of action is
derived from all those facts, which are common
cause between the parties.
[43]
Whether or not a plaintiff has the
necessary locus standi is a factual enquiry. I am satisfied, under
the circumstances, that there
is no merit in the first ground of
exception, and it is accordingly rejected.
Order,
[44]
Under the circumstances, the defendant's exception is dismissed with
costs.
TAN
Makhuvele
Judge
of the High Court
Appearances
Excipients
(Defendants in the main action): Advocate S Aucamp
(Heads of argument drafted by
Adv. JG Dobie)
instructed
by:
Reaan Swanepoel Attorneys
c/o Petzer Du Tojt & Ramulifho
Hatfield
Pretoria
Respondent (Plaintiff In the main
action): Advocate J de Beer
Instructed
by:
Roestoff & Krause Attorneys
Hazelwood
Pretoria
Heard
on: 14 March 2019.
Judgment
delivered On: 21 May 2019.
[1]
(641/91) ZASCA 54
[1993] ZASCA 54
; ;
1993 (3) SA 264
(AD);
[1993] 2 ALL SA 278
(a) (31 March 1993)